1882. LEWIN v. WILSON et al. Palmer, J. what belongs to Howe's wife, must be dismissed, and as there is nothing in the case to disentitle them to their costs, they will be entitled to them. There will be the usual order for the sale of the property comprised in the Howe mortgage, and I assess the debt at $4,000 principal, and the interest due thereon-in all the sum of $4,800 up to September 27th last, the plaintiffs to have their costs of that part of the suit which relates to prosecuting that part of the claim on which they have recovered, and that it be referred to a barrister. to sell either in one piece or such pieces as he may deem advisable, all parties having leave to bid. This decision was affirmed on appeal, 9 Can. S. C. R. 637; and reversed by the Judicial Committee of the Privy Council, 11 App. Cas. 639. In the Law Quarterly Review, Vol. 7, p. 43, Mr. Thos. Millidge contributes a learned article questioning the soundness of the decision in the case of the Judicial Committee of the Privy Council, and holding that it is in conflict with the decision of the Court of Appeal in Newbould v. Smith, 33 Ch. D. 127. For additional cases bearing on the question, see In re Frisby, 43 Ch. D. 106; Dibb v. Walker, [1893] 2 Ch. 429; and Kibble v. Fairthorne, [1895] 1 Ch. 219. Where it appears by the bill that the plaintiff's claim is barred or extinguished by the Statute of Limitations it is demurrable. See Hoare v. Peck, 6 Sim. 51; Fyson v. Pole, 3 Y. & C. Ex. 266; Noyes v. Crawley, L. R. 10 Ch. 31; Prance v. Sympson, Kay, 678; Dawkins v. Lord Penryhn, 4 App. Cas. 51. VERNON v. OLIVER. 1883. Practice - Summons Representative character of parties-Bill-Title- January 24. Cause of action-Pleading--Relief—Chapter 49, C. S. N. B. ss. 16 and 22. Section 16 of chapter 49, C. S., provides that all causes in Equity shall be commenced by summons, which shall include the names of all the parties, and disclose in a brief form the cause of action for which the bill is to be filed. Held, that where a plaintiff is claiming in a representative character it should be stated in the summons. The title of the bill should be of the same parties and in the same character, and in accordance with the cause of action and relief stated in the summons, and the bill itself should be in accordance with the title. Section 22 of chapter 49, C. S., provides that a bill shall conclude with a prayer for specific relief, under which, without a prayer for general relief, the plaintiff shall have any other relief to which the equities of his case may entitle him. Held. (1) that the prayer for specific relief must be substantially the same as the cause of action stated in the summons. (2) That relief to which the equities of a plaintiff's case entitle him under the above section must be consistent with the relief speci fically prayed for. The facts appear in the judgment of the Court, and in the report of the case on appeal, 23 N. B. 392. Argument was heard December 18th, 1882. J. Travis, for the plaintiff. C. A. Palmer, for the defendant. 1883. January 24. PALMER, J. :— The prayer of the bill in this cause is to have an award made between the parties by arbitrators, appointed by a written submission, amended, and the defendant decreed to pay the amount of the award, and that an order should be made that the award should stand good, except as amended, and the plaintiffs and each of them have all other relief to which they are entitled, and the defendant decreed to pay the costs. Mr. Travis, the plaintiff's counsel, opened his case asking me to amend and enforce the award, and put in his evidence, it being understood that he could at any time before the case closed read any part of the defendant's answer. The defendant opened his case, put in 1883. VERNON V. OLIVER. Palmer, J. his evidence, and closed his case. Mr. Travis then read the parts of the answer that he wished, and before my hearing the defendant's counsel on the whole case, he stated that failing in obtaining the decree, he asked, in the opening, to have the award set aside. The defendant's counsel objected to this on two grounds: 1. That it was not only not prayed for by the bill, but was inconsistent with the prayer in the bill. 2. That if it had been open under the bill, he could not take it after defendant had closed his case. 3. That the only case that they were called upon to answer was the amending the award, and the plaintiff had made out no case authorizing me to do that. I think it clear that the evidence in this case does not show any case to add to or amend the award. Whether the arbitrators did what they were authorized or not, it is clear they deliberately intended to do just what they did; and consequently the award is not the result of any mistake; that is, that it is not done differently than they intended, and I am clear that this Court could not make an award different from what the arbitrators intended. Whether, if the arbitrators had agreed to make an award, and in drawing it up had made a mistake and inserted a different sum or terms than they intended, this Court could interfere to rectify it, I am not called upon to decide. It is equally clear to my mind that I could neither make an award that they did not intend to make or compel them to do so; so that the case as made by the bill fails. I think it very doubtful if the award is valid on its face, as not being authorized by the submission, and, if so, it is bad at law and requires no decree of this Court to make it so; and if so, it would be an additional reason why I could not grant the prayer of the plaintiff's bill to enforce it. Then arises the question whether I could without amending the bill, make a decree to set aside the award. The first question to be considered is how far chapter 49 of the Consolidated Statutes has affected pleadings in suits in Equity in this country, compared with English procedure; and I now say, as I have often had occasion to say before, that in my opinion the practice of the Court is the practice of the Court of Chancery in force in England prior to the 23rd March, 1839, except where altered by Acts of Assembly, general rules or orders of the Court of Chancery of this Province in force on the 1st of May, 1854, and all general rules of the Supreme Court made since. This was made the practice by section 2 of 17 Vict. chap. 18, and continued by section 2 of chapter 49 of Consolidated Statutes. In England the first proceeding is the bill which discloses the cause of action. This is changed here by the 16th section of chapter 49, which enacts that the suit shall be commenced by summons and shall include the names of all the parties and disclose in a brief form the cause of action for which the bill is to be filed. From which I think it is obvious that a party carrying on a suit in Equity could neither proceed against any other parties than those named in the summons, nor for any cause that was not expressed therein, without amending his summons. That is, the bill could not properly ask for any relief that was not in a brief form disclosed by the summons; and it would follow that if a party found it expedient to proceed for different relief than what was first included in the claim in his summons, he ought to have his summons amended before he filed his bill; and although I have nothing to do with the reason that caused the Legislature to alter the law, yet there might be a good reason why a party should know, before he is called upon to appear in Court, what is claimed against him, as if it is only what he thinks the plaintiff is entitled to, he need not go to the expense of appearing at all. The next proceeding is the bill. What that is to contain is regulated by the 22nd section, which enacts that it shall be in the form given in the Act, beginning with the title of the cause, which I cannot help thinking, notwithstanding what is said by Chief Justice Allen in Vassie v. Vassie (1), requires to be correct-that is, not only (1) 22 N. B. 76. 1883. VERNON v. OLIVER. Palmer, J. 1883. VERNON v. OLIVER. Palmer, J. pursue the summons and have the same parties and none As I have had occasion repeatedly to say before, this section renders unnecessary any prayer for general relief, and entitles the plaintiff to the same relief as if he had such a prayer; for that is the relief the equities of his case entitle him to, if the practice of the English Court of Chancery is in force now, as the Act had de clared it to be. Pause a moment and ask, What is the meaning of stating the plaintiff's cause of action? This is what the Legislature has said the plaintiff must state in his summons. This, it appears to me, must be a short, intelligent statement of what is claimed, and the right in which it is claimed; in other words, if the claim is such as the plaintiff can only claim in some representative character other than his own right, his summons must say so, otherwise the statute is not complied with, |